A 66-year old Lansdowne man died in a house fire Wednesday where his illness of hoarding culminated in a condemned building ruling, barring firefighters from making entry.

In April, Elmer Glenn Burnette Jr's home was officially condemned, listed as "unfit for habitation." The fire department, at no fault of their own, followed a "no entry" rule when Burnette's home caught fire in order to minimize risk during initial operations. Unfortunately due to Burnette's condition, the amount of fire in relation to his location when found, it is highly unlikely that the outcome would have been different had no such rule existed.

“The building’s marked as a no-entry building because it’s a hoarder’s house,” said Lansdowne Fire Chief Tom Young. “There was a lot of fire in the living room area and, then, at that time, we didn’t know he was there. And then they did a search and found the body.”

“We’re not going to enter a building when it’s going to be more hazardous to our firefighters to enter a house like that,” said Young. “The guys did a great job knocking the fire down a fast as they did and gaining access to where (Burnette) was.”

The purpose of calling your attention is to have you consider, in the greater theory, does a code ruling and subsequent rules create a liability for fire departments? I'm not advocating that we don't have these rules, or that we expect firefighters to rush in without due regard to personal safety, but does such a rule open the door for a family or others to take us to court for not doing our (expected) job? Most importantly, let's recognize the Lansdowne firefighters and officers for managing the risks and bearing the responsibilties, especially in this situation. It is not an easy task.

As I have said before, both here and in person with others, when we begin to label occupants as either survivable or not, beyond the typical sizeup skills, we run a risk of being taken to task for playing God.

I've passed this on to Curt Varone of FireLaw for his views. What are yours?

The most likely avenue for someone to sue the fire department in this case is for negligence. Arguably there may be a Constitutional case (Section 1983 action for denial of due process) but that is probably a stretch. Occasionally some sharp attorney will try to bring a case like that to circumvent tort immunity laws but most are not successful. The attorney would have to prove that the department’s policy was intended to cause harm or constituted deliberate indifference – which is a very high burden – unlikely to be proven in this case.
The negligence analysis would focus on three vital questions:

whether or not the fire department breached a duty to the victim
whether or not the death was the proximate cause of the fire department’s decision not to enter
whether or not the fire department had immunity

In terms of a duty to act, firefighters may have a duty to respond to fires, but not a duty to commit suicide. The question of whether or not the firefighters breached the duty would require an in depth analysis of the facts in light of what the “reasonably prudent fire department” would have done under the circumstances. The next of kin of the deceased would have the burden to prove that the reasonably prudent fire department would have made an entry, and that the fire department’s decision not to enter constituted negligence.

In a similar vein – many states adopt a principle known as the public duty doctrine. Essentially the public duty doctrine holds that a fire department or firefighter cannot be held liable for any decisions or actions performed on behalf of members of the public to whom a general duty to act is owed. Liability can only be created when the fire department or firefighter owes the party a special duty. The creation of a special duty would require the fire department to have made some promise to the injured party that aid would be forthcoming, and the department would have to have known that the injured party was relying on that promise. On the facts it would not appear that the department owed the deceased a special duty. On the contrary the department made it known ahead of time they would not enter the structure in the event of a fire.

The next of kin would also have to establish that the fire department’s actions were the proximate cause of the death. Proving proximate cause in this case would be very difficult. Again the burden would be on the next of kin – and they would have to prove that if the fire department made the effort to enter the building to effect the rescue, the victim would have survived. It would not be enough to prove that by entering the building the fire department gave the victim a chance to survive. They would have to prove it more likely than not that the victim would have lived. Based on what we know that sounds speculative at best and certainly would prove to be a huge hurtle in court.

Lastly, most fire departments enjoy some level of immunity protection. The protections may be from what is left of sovereign immunity, or from statutory immunity. As a general rule, a fire department is more likely to have the benefit of immunity protection when acting in a policy making role than when acting in a functionary role. In other words, a fire chief setting policy is more likely to have immunity than a company officer making a tactical decision at a fire.

In this case, the decision use a defensive strategy was not a tactical decision made at the fire. It was a policy decision made by the department’s leadership. For that reason, it is more likely that the department will have the benefit of what every immunity protection is available under state law.

So on balance, I would say that the fire department is probably in a defensible position in the event they are sued by the victim’s family. Like the Alameda, California case and the Edgewater, Florida case I have discussed recently – the duty to act and the failure to act pose significant liability issues for fire departments. These cases also create public relations and political issues as well. We will definitely need to track this case.

Ron AyotteMindsetDave... you hit it to of he ballpark again! Every firefighter, fire service instructor and every fire chief should read this...i n some cases, it should be read daily as a reminder of what the core mission of our profession is.
2015-03-29 12:20:59

Bill SchnaekelIf Not Us, Then Who?Chief Ayotte, Thank you, not only for your kind words but your informative response. You had stated that it was a judgement call as to whether or not the initial arriving company officer conducted a quick primary search on marked vacant buildings. I'm curious, would that same officer face disciplinary actions if that were the…
2015-03-23 18:19:02

Steve YelichSome Saw Bullshit, Volume IIShared Post from CMD-FDGabe- This was a personal pet peeve of mine when I was on the Truck. All you have to do is read the instructions for Warthog blade care and a little pride in your equipment. I always took a trash bag and laid it flat; sprayed WD-40 all over it. Laid the blade on it…
2015-03-19 22:52:36

Ron AyotteIf Not Us, Then Who?Bill... your article is definitely something that should be brought up in every firehouse, whether it be in a formal class setting or an informal firehouse kitchen table discussion. I was my Department's liaison to and a member of the City's Code Enforcement Impact Team. Part of what we did was marking abandoned properties with…
2015-03-18 06:28:13

mike clarkOur Riding ListRic Jorge: Brother, if you could grow a mustache like mine we would look like twins. I had the opportunity to teach with Eric "Tatter"Hankins, E.J. Mascaro, Bobby Haas and Rusty Ricker. Your name came up and the success that you have realized with the SIT program and enlightenment it has provided to America's Firefighters.…
2015-03-18 01:03:20